UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
May 27, 2009
UNITED STATES OF AMERICA,
ALBERT FELDER, DEFENDANT.
The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
DECISION & ORDER
Defendant Albert Felder was convicted upon his guilty plea of engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848. At sentencing, the Court found that Defendant was responsible for the distribution of 17.2 kilograms of cocaine base. Section 2D1.5(a)(1) of the United State Sentencing Guidelines ("Guidelines") directed that the base offense level was 4 plus the offense level from Guidelines § 2D1.1 applicable to the underlying offense. Guidelines § 2D1.1(c)(1) set the base offense level for the distribution of an excess of 1.5 kilograms of cocaine base at 38. Adding four offense levels pursuant to Guidelines § 2D1.5(a)(1) resulted in a base offense level of 42. Taking 3 levels off for acceptance of responsibility and for a timely plea resulted in a total offense level of 39. At a criminal history category II, Defendant's Guidelines range of imprisonment was 292 to 365 months. However, because Felder had a prior drug felony conviction, as reflected in a Special Information filed pursuant to 21 U.S.C. § 851, the statutory mandatory minimum term of imprisonment was 30 years. See 21 U.S.C. § 848. Accordingly, the Guidelines range of imprisonment was then 360 - 365 months. See U.S.S.G. § 5G1.1.
At sentencing, the Government moved pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1 for a downward departure from the statutory minimum term of imprisonment and Guideline imprisonment range based upon Felder's substantial assistance to the Government. The Court granted the motion and sentenced Defendant to 210 months of imprisoned.
Felder now moves to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) based on U.S. Sentencing Guidelines Amendment 706. The United States opposes the motion. For the reasons set forth below, the motion is denied.
The applicable statute providing authority for the Court to re-sentence a defendant in these circumstances is 18 U.S.C. § 3582(c)(2). This provides:
[I]n the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(2).
The applicable policy statement issued by the Sentencing Commission is U.S.S.G. §1B1.10 ("Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement)"). This provides in pertinent part:
(a) Authority. -* * *
(2) Exclusions. - A reduction in the defendant's term of imprisonment is not consistent with this policy statement and therefore is not authorized under 18 U.S.C. § 3582(c)(2) if-
(B) [Amendment 706] does not have the effect of lowering the defendant's applicable guideline range.
U.S.S.G. § 1B1.10(a)(2).
Amendment 706 does not apply to Defendant because he was responsible for more than 4.5 kilograms of crack cocaine. See U.S.S.G. App. C, Amend. 706; U.S.S.G. § 2D1.1(c); see also United States v. Harris, 2009 WL 368321(11th Cir. Feb 17, 2009)( per curiam ) ("Amendment 706 reduced offense levels in certain crack cocaine cases by two levels, as reflected in the drug quantity table in U.S.S.G. § 2D1.1(c). . . . A defendant who was held accountable for 4.5 kilograms or more of crack cocaine is not eligible for a sentence reduction under § 3582(c)(2) and Amendment 706 because his base offense level remains at 38, and, thus, his Guidelines sentence range has not been reduced."); United States v. Jones, 548 F.3d 1366, 1369 (11 th Cir. 2008)("Under Amendment 706, the guidelines now provide a base offense level of 36 for defendants who are responsible for at least 1.5 kilograms but less than 4.5 kilograms of crack cocaine. . . . However, a base offense level of 38 still applies to defendants responsible for 4.5 kilograms or more."). Because Amendment 706 does not apply, the Court lacks authority to reduce the sentence pursuant to 18 U.S.C. § 3582(c)(2). See United States v. Wanton, 525 F.3d 621, 622 (8th Cir. 2008) (affirming denial of § 3582(c)(2) motion that was based on Amendment 706 because "the new amendment does not apply where more than 4.5 kilograms of crack is involved.").
Assuming, arguendo , that Amendment 706 did apply, Defendant would nonetheless be ineligible for a reduction. Upon application of the statutory mandatory minimum sentence, Defendant's Guidelines sentence of imprisonment became 360 - 365 months. See U.S.S.G. § 5G1.1(b)("Where a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence."), § 5G1.1(c)("In any other case, [a] sentence may be imposed at any point within the applicable Guideline range, provided that the sentence . . . (2) is not less than any statutorily required minimum sentence."); see also United States v. Williams, 551 F.3d 182, 185 (2d Cir. 2009); United States v. Johnson, 517 F.3d 1020, 1024 (8 th Cir. 2008). Amendment 706 has no effect on a statutory mandatory minimum sentence and, thus, does not have the effect of lowering Defendant's applicable Guidelines range. Williams, 551 F.3d at 185 ("Once the mandatory minimum applied, [Defendant's] sentence was no longer 'based on a sentencing range that has subsequently been lowered by the Sentencing Commission.'")(quoting 18 U.S.C. § 3582(c)(2)); see Johnson, 517 F.3d at 1024 (If the crack sentencing amendment would not change the Guidelines sentence, then "[the crack cocaine sentencing reduction amendment] does not have the effect of lowering the defendant's applicable guideline range.").
Of course, the ultimate sentence in this case was not the statutory mandatory minimum but instead a lower sentence based on the Government's motion under 18 U.S.C. § 3553(e). In this regard, the ultimate sentence was based upon considerations of Defendant's cooperation with the Government. Williams, 551 F.3d at 186.*fn1 Inasmuch as the Court determined that the full extent of the departure based on Defendant's substantial assistance warranted a sentence of 210 months imprisonment, there was no basis to consider the crack cocaine Guidelines in passing sentence. See id. at 186-87.*fn2 Therefore, Amendment 706 offers Defendant no relief. Id.
Finally, assuming further that Amendment 706 applies to Defendant's situation, the Court declines to allow a two level downward departure in light of the departure already granted below the statutory minimum and upon consideration of the factors set forth at § 3553(a). See United States v. Borden, 564 F.3d 100, 104 (2d Cir. 2009)("Because the statute states that a district court may reduce the term of imprisonment, it clearly allows for a district court to exercise its discretion when considering a motion to reduce a sentence brought pursuant to § 3582(c)(2).").
For the reasons set forth above, Defendant's motion to reduce his sentence is DENIED.
IT IS SO ORDERED